Regulation (EU) 2019/1896 of the European Parliament and of the CouncilDangos y teitl llawn

SECTION 8 U.K. Action by the Agency in the area of return

Article 48 U.K. Return

1. Without entering into the merits of return decisions, which remain the sole responsibility of the Member States, and in accordance with the respect for fundamental rights, general principles of Union law and international law, including international protection, the respect for the principle of non-refoulement and children's rights, with regard to return, the Agency shall:

(a) provide technical and operational assistance to Member States in the area of return, including in:

(i)

the collection of information necessary for issuing return decisions, the identification of third-country nationals subject to return procedures and other pre-return, return-related and post-arrival and post-return activities of the Member States, to achieve an integrated system of return management among competent authorities of the Member States, with the participation of relevant authorities of third countries and other relevant stakeholders;

(ii)

the acquisition of travel documents, including by means of consular cooperation, without disclosing information relating to the fact that an application for international protection has been made or any other information that is not necessary for the purpose of the return;

(iii)

the organisation and coordination of return operations and provide assistance in relation to voluntary returns in cooperation with the Member States;

(iv)

assisted voluntary returns from the Member States, providing assistance to returnees during the pre-return, return-related and post-arrival and post-return phases, taking into account the needs of vulnerable persons;

(b) provide technical and operational assistance to Member States experiencing challenges with regard to their return systems;

(c) develop, in consultation with the fundamental rights officer, a non-binding reference model for national IT systems for return case management which describes the structure of such systems, as well as provide technical and operational assistance to Member States in developing such systems compatible with the model;

(d) operate and further develop an integrated return management platform and a communication infrastructure that enables the linking of the return management systems of the Member States with the platform for the purpose of exchanging data and information, including the automated transmission of statistical data, and provide technical and operational assistance to Member States in connecting to the communication infrastructure;

(e) organise, promote and coordinate activities enabling the exchange of information and the identification and pooling of best practices in return matters between the Member States;

(f) finance or co-finance from its budget, in accordance with the financial rules applicable to the Agency, the operations, interventions and activities referred to in this Chapter, including reimbursing the costs incurred for the necessary adaptation of the national IT systems for return case management for the purpose of ensuring secure communication to the integrated return management platform.

2. The technical and operational assistance referred to in point (b) of paragraph 1 shall include activities to help Member States carry out return procedures by the competent national authorities by providing, in particular:

(a) interpreting services;

(b) practical information, including the analysis of such information, and recommendations by the Agency on third countries of return relevant for the implementation of this Regulation, in cooperation, where appropriate, with other Union bodies, offices and agencies, in particular EASO;

(c) advice on the implementation and management of return procedures in compliance with Directive 2008/115/EC;

(d) advice on and assistance in the implementation of measures taken by Member States in compliance with Directive 2008/115/EC and international law that are necessary to ensure the availability of returnees for return purposes and to prevent returnees from absconding and advice on and assistance in relation to alternatives to detention;

(e) equipment, resources and expertise for the implementation of return decisions and for the identification of third-country nationals.

3. The Agency shall aim at building synergies and connecting Union-funded networks and programmes in the field of return in close cooperation with the Commission and with the support of relevant stakeholders, including the European Migration Network.

Article 49 U.K. Information exchange systems and management of return

1. The Agency shall operate and further develop, in accordance with point (d) of Article 48(1), an integrated return management platform for processing information, including personal data transmitted by the Member States' return management systems, that is necessary for the Agency to provide technical and operational assistance. Personal data shall only include biographic data or passenger lists. Personal data shall be transmitted only where they are necessary for the Agency to assist in the coordination or organisation of return operations to third countries, irrespective of the means of transport. Such personal data shall be transmitted to the platform only once a decision to launch a return operation has been taken, and shall be erased as soon as the operation is terminated.

Biographic data shall only be transmitted to the platform where they cannot be accessed by members of teams in accordance with Article 17(3) of Regulation (EU) 2018/1860 of the European Parliament and of the Council(1).

The Agency may also use the platform for the purpose of securely transmitting biographic or biometric data, including all types of documents which can be considered as proof or prima facie evidence of the nationality of third-country nationals subject to return decisions, where the transmission of such personal data is necessary for the Agency to provide assistance, at the request of a Member State, in confirming the identity and nationality of third-country nationals in individual cases. Such data shall not be stored on the platform and shall be erased immediately following a confirmation of receipt.

2. The Agency shall develop, deploy and operate information systems and software applications allowing for the exchange of information for the purpose of return within the European Border and Coast Guard and for the purpose of exchanging personal data.

3. Personal data shall be processed in accordance with Articles 86, 87, 88 and 91, as applicable.

Article 50 U.K. Return operations

1. Without entering into the merits of return decisions, which remain the sole responsibility of the Member States, the Agency shall provide Member States with technical and operational assistance and shall ensure the coordination or the organisation of return operations, including through the chartering of aircraft for the purpose of such operations and organising returns on scheduled flights or by other means of transport. The Agency may, on its own initiative and with the agreement of the Member State concerned, coordinate or organise return operations.

2. Member States shall provide operational data on returns necessary for the assessment of return needs by the Agency through the platform referred to in Article 49(1) and shall inform the Agency of their indicative planning as regards the number of returnees and the third countries of return, both with respect to relevant national return operations, and of their needs for assistance or coordination by the Agency. The Agency shall draw up and maintain a rolling operational plan to provide the requesting Member States with the necessary operational assistance and reinforcements, including through technical equipment. The Agency may, either on its own initiative and with the agreement of the Member State concerned or at the request of a Member State, include in the rolling operational plan the dates and destinations of return operations it considers necessary, based on a needs assessment. The management board shall decide, on the basis of a proposal from the executive director, on the modus operandi of the rolling operational plan. The Member State concerned shall confirm to the Agency that all returnees covered by a return operation organised or coordinated by the Agency are the subject of an enforceable return decision.

Where members of the teams are deployed, they shall consult the Schengen Information System prior to the return of any returnee in order to check whether the return decision issued in relation to that returnee has been suspended or whether its enforcement has been postponed.

The rolling operational plan shall contain the elements necessary for carrying out a return operation, including those concerning the respect for fundamental rights, and shall refer to, inter alia, relevant codes of conduct and procedures for monitoring, reporting and the complaints mechanism.

3. The Agency may provide technical and operational assistance to the Member States and may also, either on its own initiative and with the agreement of the Member State concerned or at the request of the participating Member States, ensure the coordination or the organisation of return operations for which the means of transport and return escorts are provided by a third country of return (‘collecting return operations’). The participating Member States and the Agency shall ensure that the respect for fundamental rights, the principle of non-refoulement, the proportionate use of means of constraints and the dignity of the returnee are guaranteed during the entire return operation. At least one Member State representative, and one forced-return monitor from the pool established under Article 51 or from the monitoring system of the participating Member State, shall be present throughout the entire return operation until arrival at the third country of return.

4. The executive director shall draw up a return plan for collecting return operations without delay. The executive director and any participating Member State shall agree on the plan detailing the organisational and procedural aspects of the collecting return operation, taking account of the implications for the fundamental rights and risks of such operations. Any amendment to or adaptation of that plan shall require the agreement of the parties referred to in paragraph 3 and in this paragraph.

The return plan for collecting return operations shall be binding on the Agency and any participating Member State. It shall cover all the necessary steps for carrying out collecting return operations.

5. Every return operation organised or coordinated by the Agency shall be monitored in accordance with Article 8(6) of Directive 2008/115/EC. The monitoring of forced-return operations shall be carried out by the forced-return monitor on the basis of objective and transparent criteria and shall cover the whole return operation from the pre-departure phase until the handover of the returnees in the third country of return. The forced-return monitor shall submit a report on each forced-return operation to the executive director, the fundamental rights officer and to the competent national authorities of all the Member States involved in the given operation. If necessary, appropriate follow-up shall be ensured by the executive director and competent national authorities respectively.

6. If the Agency has concerns regarding the respect of fundamental rights at any stage of a return operation, it shall communicate them to the participating Member States and to the Commission.

7. The executive director shall evaluate the results of the return operations and shall transmit every six months a detailed evaluation report to the European Parliament, to the Council, to the Commission and to the management board covering all return operations conducted in the previous semester, together with the observations of the fundamental rights officer. The executive director shall make a comprehensive comparative analysis of those results with a view to enhancing the quality, coherence and effectiveness of future return operations. The executive director shall include that analysis in the Agency's annual activity report.

8. The Agency shall finance or co-finance return operations from its budget, in accordance with the financial rules applicable to the Agency, giving priority to those conducted by more than one Member State, or from hotspot areas.

Article 51 U.K. Pool of forced-return monitors

1. The Agency shall, after taking due account of the opinion of the fundamental rights officer, constitute a pool of forced-return monitors from competent bodies of the Member States who carry out forced-return monitoring activities in accordance with Article 8(6) of Directive 2008/115/EC and who have been trained in accordance with Article 62 of this Regulation.

2. The management board shall, on the basis of a proposal from the executive director, determine the profile and the number of forced-return monitors to be made available to that pool. The same procedure shall apply with regard to any subsequent changes in the profile and overall numbers.

Member States shall be responsible for contributing to the pool by nominating forced-return monitors corresponding to the defined profile, without prejudice to the independence of those monitors under national law, where national law so provides. The Agency shall also contribute fundamental rights monitors as referred to in Article 110 to the pool. Forced-return monitors with specific expertise in child protection shall be included in the pool.

3. Member States' contribution of forced-return monitors to return operations and interventions for the following year shall be planned on the basis of annual bilateral negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the forced-return monitors available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. Such a request shall be made at least 21 working days before the intended deployment, or five working days in the case of a rapid return intervention.

4. The Agency shall make the forced-return monitors available upon request to participating Member States to monitor, on their behalf, the correct implementation of the return operations and return interventions throughout their duration. It shall make available forced-return monitors with specific expertise in child protection for any return operation involving children.

5. Forced-return monitors shall remain subject to the disciplinary measures of their home Member State in the course of a return operation or return intervention. Statutory staff deployed as forced-return monitors shall be subject to the disciplinary measures provided for in the Staff Regulations and the Conditions of Employment.

Article 52 U.K. Return teams

1. The Agency may deploy return teams either on its own initiative and with the agreement of the Member State concerned or at the request of that Member State. The Agency may deploy such return teams during return interventions, in the framework of migration management support teams or as necessary to provide additional technical and operational assistance in the area of return. Where necessary, return teams shall contain officers with specific expertise in child protection.

2. Article 40(2) to (5) and Articles 43, 44 and 45 shall apply mutatis mutandis to the return teams.

Article 53 U.K. Return interventions

1. Where a Member State is facing a burden when implementing the obligation to return returnees, the Agency shall provide the appropriate technical and operational assistance in the form of a return intervention, either on its own initiative and with the agreement of the Member State concerned or at the request of that Member State. Such intervention may consist in the deployment of return teams to the host Member State providing assistance in the implementation of return procedures and the organisation of return operations from the host Member State.

Article 50 shall apply also to return operations organised or coordinated by the Agency in the framework of return interventions.

2. Where a Member State is facing specific and disproportionate challenges when implementing its obligation to return returnees, the Agency shall provide the appropriate technical and operational assistance in the form of a rapid return intervention, either on its own initiative and with the agreement of the Member State concerned or at the request of that Member State. A rapid return intervention may consist in the rapid deployment of return teams to the host Member State providing assistance in the implementation of return procedures and the organisation of return operations from the host Member State.

3. In the context of a return intervention, the executive director shall draw up an operational plan without delay, in agreement with the host Member State and the participating Member States. The provisions of Article 38 shall apply mutatis mutandis.

4. The executive director shall take a decision on the operational plan as soon as possible and, in the case referred to in paragraph 2, within five working days. The decision shall be immediately notified, in writing, to the Member States concerned and to the management board.

5. The Agency shall finance or co-finance return interventions from its budget in accordance with the financial rules applicable to the Agency.

(1)

Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use of the Schengen Information System for the return of illegally staying third-country nationals (OJ L 312, 7.12.2018, p. 1).